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Public nudity – staying within the law

“How naked is too naked?” is a question that frequently arises as temperatures soar. Naked yoga was seen to be the latest trend at Glastonbury festival this year and research conducted by the British Naturism organisation suggests that more Britons are going naked than ever before. But what are the legal boundaries when it comes to public nudity?

The law

Firstly, it is not an offence to be naked in public in England and Wales. However, it can become an offence if it can be proven that the naked individual caused harassment, alarm or distress to another person. In the absence of any sexual context and intention to cause alarm and distress – being naked in public is within the law.

The Crown Prosecution Service (CPS) notes in its guidance that every case should be considered on its own facts and merits and ‘a balance needs to be struck between the naturist’s right to freedom of expression and the right of the wider public to be protected from harassment, alarm and distress’. In assessing intention, there must be a serious reason to believe that the naked individual intended to cause alarm and distress. Therefore the circumstance in which public nudity occurs will need to be carefully reviewed.

Possible offences

There are a number of offences with which a naked individual with the necessary intent could be charged:

Indecent exposure under s.66 Sexual Offences Act: this requires a person to intentionally expose their genitals and intend that someone will see them and be caused alarm or distress.

Harassment, alarm, distress under s.5 Public Order Act 1986: this requires a person to display any writing, sign or other visible representation which is threatening, abusive or insulting, within the hearing or sight of a person that is likely to cause harassment, alarm or distress.

Outraging public decency under common law: this requires a person to do in public any act of a lewd, obscene or disgusting nature which outrages public decency and must “go considerably beyond the susceptibilities of, or even shocking, reasonable people.” (per Lord Simon in Knuller (Publishing, Printing and promotions) Ltd v DPP)

If found guilty of any of the above offences, a defendant could face anything from a fine to several years imprisonment.

If the naked individual’s intention is limited to going about his or her lawful business without any clothes on they will not necessarily be guilty of these offences.

However, whilst recognising a person’s right to be naked in public, recent case law suggests that there is a “pressing need” for a restriction on such a right in certain social contexts (Gough v DPP [2013] EWHC 3267). Arguably, s.5 POA 1986 can easily override a person’s right to freedom of expression under Article 10 ECHR in the name of public protection.

Some may argue that there is no difference between being naked in public and breastfeeding or sunbathing topless in public – could these acts also cause someone harassment, alarm or distress thus activating s.5? It was suggested in Gough v DPP – there was no entitlement for the views of the minority to “trample roughshod” over the public’s right to enjoy a public space without being caused harassment, alarm and distress.

While the law does not deny a person’s right to be naked in public –it takes a brave and committed naturist to be naked in public as to do so runs the risk of falling foul of the spirit if not the letter of the law.

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